JacksonFrugalista Ordered to Shut Down

Or change the name. The order comes from attorneys representing Natalie McNeal, a blogger with the Miami Herald. She apparently has trademarked the word “Frugalista.” The WORD. Not a brand or service she is calling “Frugalista,” the actual WORD.

Now, this blog has been up for justa few days. I am not worried about that. But something inside me is INCREDIBLY offended that someone can own a WORD. Not the name of a product or a store or something like that, but a WORD that is in general use that refers to a concept. It would be like trademarking “foodie.” It’s a relatively new term, but it’s a descriptive term, not specific to any single person or product.

I checked the trademark registration with the US Trademark Office. It is there — basically, anyone who wants to use the word “frugalista” in reference to any kind of financial tips (like, “hey, rummage sale!”) in an online journal or blog must FIRST get McNeal’s permission.

I am not usually an anti-government ranter, but WHY does the government allow people to file stuff that makes it “illegal” for me to use a generic-if-recently-developed word in my blog?

And, by the way — do ANY of us think my little blog talking about what’s on sale in Jackson-Freakin’-Mississippi should be ANY kind of threat to ANYTHING happening in Miami? Is there anyone who will be looking for her blog, “FrugalistaFiles” and stumble onto mine and be confused? I would think the word “Jackson” in the name of my blog would be a clue.

It’s not like I am doing my blog for any kind of profit. I am posting about church rummage sales and telling my friends that Hudson’s in Ridgeland got some maternity clothes. There is no cash in that.

It’s dumb. And I hate-hate-hate-hate-hate dumb.

Here’s the text of an email I sent to the US Trademark Office. Curious to see if I get a response:

To whom it may concern:

I am the recipient of a “Cease and Desist” letter from an attorney representing the holder of US Trademark Application, serial number 3532912, for the word “Frugalista.” The holder of that application has a blog hosted by the website of the Miami Herald called “Frugalista Files.” She covers fashion and financial issues, primarily in South Florida.

I recently started a blog for friends and family in Jackson, Mississippi, called “Jackson Frugalista.” This blog is dedicated to talking about special sales, consignment stores, rummage sales, etc., in the Jackson, Mississippi area.

I looked at the restrictions for the trademark application in question. The short definition is that any use of the word “frugalista” in ANY online journal or blog, related in ANY way to financial matters or tips (such as notification of sales) is restricted to only the application holder.

I would like to suggest that this word is not one that should be restricted as such and that perhaps the trademark application should be rejected.

1) Descriptive marks — where the mark describes a characteristic or quality. Such words are not protected unless they have obtained secondary meaning. The definition of “Frugalista” is completely descriptive — “a person who is fashionable while being thrifty.”

2) Secondary meaning — when the consuming public associates that mark/word with a particular producer/source, rather than the underlying meaning. The public doesn’t have to know the producer, they must simply understand that a single producer is associated with it. I assert that the word “Frugalista” does not have that kind of association with the South Florida blog or the holder of the mark, even when she is mentioned in passing by other authors who use the word.

3) Genericity — “A word will be considered generic when, in the minds of a substantial majority of the public, the word denotes a broad genus or type of product and not a specific source or manufacturer.” While the blog the application holder runs is well-known in South Florida, the word “frugalista” does not typically cause the public to think of the blog. The word has a meaning altogether separate from the blog, as evidenced by its extensive usage on the web (see sites listed and linked below). In fact, the New Oxford American Dictionary named “frugalista” a finalist for “word of the year” for 2008. It’s description of the word did not mention the South Florida blog or any particular online product or effort. Even William Safire, who does mention the “Frugalista Files” in an article, references the word as a concept, not a particular brand. **My information is from the “Overview of Trademark Law” posted by Harvard Law School.

I presume the definitions and exceptions were included in trademark law to prevent any one person or company from having exclusive legal rights to what are (or are becoming) common-use words. Imagine if someone had, at some point, trademarked the word “recession.”

The trade marking of common-use words like “frugalista” is fundamentally unfair. I am not trying to make money off the word. I am not trying to do postings about South Florida bargain shopping, I simply want to give my friends and family some shopping tips for our area. I can’t do that, though, under my chosen name, because of this restriction approved by your office. And neither can many of the blog and website authors I linked to above.

Please reconsider your approval of this trademark.

I look forward to your response.

—————————–

Will let you know what I hear.

Like this:

What a loony thing! If she’s sending you this kind of letter, she needs to send it to every fashion-related show on the air, from Project Runway to Making Over America to What Not to Wear. I’ve heard them ALL use the term. I’ve also seen it in a few recent novels. This girl is completely full of herself, and there’s NO WAY she used the word first!

Tell them to get screwed. Tell them that when the trademark application is formally approved that you will be glad to change the name of your blog.

What McNeil is trying to do is bolster her trademark application. If you agree that she owns the term, which is a dubious claim, then she can use that acceptance to her advantage with the patent office.

Yeah, I have wondered about that. Her trademark seems limited to online journals and blogs, BUT if she is trying to protect a “brand,” I don’t see how Target isn’t a threat. She’s probably just going after the people who don’t have a team of lawyers at their beck and call!

Found your blog via this, and was curious as to how things had developed from there. With regards to this message, I’d be highly surprised if the USPTO even responds. The influx of mail they get is utterly mindboggling — it’s probably one of the most paperwork-intensive government agencies, right up there with, if not surpassing, the IRS.

As for the cease-and-desist, I suppose it would all depend on whether they decide to haul you before a judge or not. However, were I in your shoes, I’d not just ignore it. Did you know that back in ’06, P. Diddy ignored all of the cease-and-desist letters sent by Bridgeport Music prior to them filing suit (Diddy had used a six-second sample of a song by the Ohio Players), and because of that, the jury awarded Bridgeport $3.5 million in punitives?

Were I in your situation, I’d be pretty damn grumpy about the affair, but I’d also weigh a two-week-old blog in one hand against the time, effort and money it’d take to combat a newspaper-funded copyright lawsuit, and I’d probably end up changing my blog’s name. Might not be the path you go, but that’s what I’d do were I in your shoes.

I just read your comments and I have to say that I am so upset for me. Sounds strange but of course I am upset for you but really for all the rest of us as well. I just started a blog called The Frugalistic Fashionista. SHould I be concerned that someone will sue me or shut down my blog because the words have been used before? Does that mean that any of us that use that word are at risk to be shut down? I don’t agree with the blogger that seems to say ‘change the blog’s name’ – We pass up the opportunity to challenge too many things and too many people because we don’t have the deep pockets to challenge. If it were me I would go full steam public with this and become a cause and get national if not global attention – because no one has the right to own words!
Go for it.